In April, the New York State Commission on Judicial Conduct concluded a year-long investigation of nepotism at the Appellate Division, First Department, finding six instances in which workers with “direct family ties” to persons working in the chambers of the court’s Presiding Justice Luis A. Gonzalez had been hired at the end of 2010. Instead of seeking to punish the judge, the commission issued a report proposing reforms in the way hiring is handled in the Manhattan appeals court and its three counterparts in Brooklyn, Albany and Rochester.

Among those hired were Justice Gonzalez’ former wife and a two relatives—both nephews—of the two women who had in turn served as Justice Gonzalez’ top aide.

The commission’s decision not to seek punishment, in the face of those revelations, drew critical reviews. An editorial in the Daily News called the resolution “wrongheaded[]; one in the New York Times called it “troubling.”

What the editorial writers, and by extension the public, did not know from reading the report is that there was a seventh case that also raised serious nepotism issues. The case involved Justice Gonzalez’ hiring of the niece of another judge who also sits in the First Department —Justice Sallie Manzanet-Daniels—to be his personal secretary.

Why is the omission of a reference to Justice Gonzalez’ hiring of Justice Manzanet-Daniels’ niece important, in light of the shocking revelation in the New York Post, validated a year later by the commission, that the judge’s ex-wife, had been hired to work at the First Department?

Bright Line Rule

The answer to that lies in the way the state’s anti-nepotism laws are structured. The state’s ethics rules for judges contain a bright-line rule applicable only in instances where a judge’s relative is hired to work for the “same” court upon which the judge sits. The rule, now contained in Section 100.3(C)(3) of the Rules Governing Judicial Conduct, prohibits the hiring of judges’ relatives within the fourth degree. Other more general rules apply to the hiring of relatives of other staffers, both lawyers and non-lawyers. The general rules also, of course, apply to the hiring of judges’ relatives.

Counting the hiring of Justice Manzanet-Daniels’ niece, there would have been seven instances of possible nepotism in hiring at the First Department. Only two of those cases involve the hiring of judges’ relatives which would trigger the bright-line rule: Justice Gonzalez’ former wife, Vivian Gonzalez, and Justice Manzanet-Daniel’s niece, Darilie Vega.

Further, the legal issues and facts surrounding the two hires present a more potent case for finding a violation of the fourth-degree rule with respect to Ms. Vega’s hiring.

When I asked Robert H. Tembeckjian, the commission’s top executive, about the omission of any reference to the hiring of Justice Manzanet-Daniel’s niece, he declined to comment on any aspect of the commission’s investigation and report. But as a general matter, he noted that the fourth-degree rule is circumscribed by a different rule which give judges sole discretion over the hiring of chambers employees.

That leaves open the question of whether the commission was aware of Ms. Vega’s hiring, and her relationship to Justice Manzanet-Daniels. The answer to that seems clear. I reported both Ms. Vega’s hiring and the relationship in an article published in the New York Law Journal 10 months before the commission issued its report. My sources, strong at the time, have grown stronger since. Justice Manzanet-Daniels did not respond to a request for comment for the news item in the Law Journal, and efforts to reach her through her work contacts have been unavailing now that the court is on summer recess.

With the available information strongly suggesting that the commission was aware of Ms. Vega’s hiring and its circumstances, I think the commission made a mistake in not, at a minimum, referencing her hiring through a description of the essential facts, even if no names were disclosed. Of the six instances of nepotism the panel did discuss, only the name of Ms. Gonzalez was contained in the report. The names of the two executive assistants, whose nephews were hired—Elba Castro and Susan Hernandez-Roura—were published in the report. The remaining three whose relatives were hired were referred to by their position in Justice Gonzalez’ chambers.

Problems Flow from Non-Disclosure

The non-disclosure raised a host of problems that posed disconcerting questions for the commission. For starters there is the threshold question of its knowledge of the hiring. Did the commission in fact investigate the hiring, but not report it? Was the commission placing itself at risk of even greater public derision should the Law Journal article be picked up by the New York Post or another general circulation newspaper?

The omission leaves other unsettling questions. Ms. Vega’s hiring appears to pose a clear-cut violation of the fourth-degree rule. As Justice Manzanet-Daniels’ niece, Ms. Vega is related in the “third degree” to the judge who sits alongside Justice Gonzalez on the “same” court.

In contrast, the case for showing that Ms. Gonzalez’ hiring fell within the fourth-degree rule is weak. Though neither the New York Court of Appeals nor the commission itself has addressed the issue, it seems likely that either tribunal would conclude that the relationship chain was broken by the couple’s divorce more than a decade ago.

The commission report is the first public disclosure in its 33-year history to link an appeals judge to any ethical violation, let alone one as serious as nepotism. It is unusual for a prosecutor’s office—once it has target as prominent in an organization as Justice Gonzalez is in the courts—to forego building the strongest possible case.

In the absence of a public airing, some significant facts remained out of view. For instance, Justice Manzanet-Daniel’s biography posted on the court system’s Web site states that she served for three years as Justice Gonzalez’ law secretary while he was sitting as a trial judge in the Supreme Court in the Bronx.

Awkward All Around

The absence of any reference to Ms. Vega leaves both the commission and the public in an awkward position. The public is in the dark as to what the commission did and why it did it. And the commission is exposed to speculation as to the answers to those questions.

There is no question that the commission did a very thorough job of investigating the scope of the nepotism in the Appellate Division throughout the state. Starting with the tip of iceberg revealed in the New York Post article, the commission examined hires raising nepotism issues going back three decades in the First Department and also looked at the issue in the three other Appellate Division departments.

In the First Department alone, the commission reported examining the circumstances under which 25 non-lawyer staffers were hired to replace workers who had taken early retirement at the end of 2010 (the group included Ms. Vega, who was hired on Nov. 29, 2010 at a salary of $58,298, according to state payroll records posted on SeeThroughNY.com).

The commission found that “virtually all” of the 25 replacements had found out about their jobs, which were not publicly advertised, through a “word-of-mouth” process emanating from “contacts” inside the First Department. It also found the same “inherently exclusive” hiring system had been the rule rather than the exception in First Department going back three decades. It likewise found similar problems in other departments but did not describe them as being as pervasive.

To remedy the situation, the commission proposed several reforms, including, at minimum, a requirement that openings for non-lawyer jobs be posted on the court system’s Web site. The day after the commission released its report, the court system’s policy-making body—on which Justice Gonzales, as a presiding justice sits—voted to adopt the reforms.

There was no legal prohibition, however, preventing the commission from going further and seeking sanctions, which could have included removal, against Justice Gonzalez.

Court of Appeals’ Stern Words

All of this should be evaluated against the backdrop of the New York Court of Appeals’ stern words signaling that the commission needs to take strong action to combat nepotism. Nepotism—and the scorn and ridicule it can subject the courts to—is a prime evil that the code was designed to deter, the court wrote in a decision issued in 1979, the first year the commission began full operation.

In Spector v. State Commission on Judicial Conduct, 47 NY2d 462, the Court wrote that the American Bar Association had “outrightly condemned” nepotism in the first ethics code it adopted in 1924 and that “unequivocal disapproval has been carried forward, undiminished.”

An “explicit injunction” contained in the rule, the court continued, makes a judge’s appointment of a son “both unthinkable and intolerable whatever might be the son’s character and fitness.” That “explicit injunction,” which barred hiring of judge’s relatives in the sixth degree has since been narrowed to relatives within the fourth-degree.

What would the Spector court have thought of the commission’s handling of the investigation of Justice Gonzalez and its treatment of Ms. Vega’s hiring?